Comments from a conservative-bordering-on-libertarian living in the great State of Maryland

Tuesday, December 30, 2008

Harry Reid channels Justice Thomas

One of the more hilarious attempts by Senate Majority Leader Harry Reid (D-NV) to exude gravitas came when criticizing Justice Thomas with his noting, among other things that “[Justice Scalia] doesn't want to turn stare decisis precedent on its head. That's what Thomas wants to do.”

Stare Decisis – you know, respect for prior Supreme Court decisions that may have already addressed a particular issue at hand…say, the matter of allowing a particular gentleman to assume a Senate seat he had been duly appointed to:

Governor Blagovech – because he is still governor – has the constitutional authority to appoint someone to fill in a vacant Senate seat.

“When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” The Seventeenth Amendment

…which Illinois has done:

“Sec. 25‑8. When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.10 ILCS 5/ Election Code.

“Illinois Secretary of State Jesse White says he'll reject any paperwork that Gov. Rod Blagojevich files to name a new U.S. senator.

“The secretary of state keeps state records and certifies official actions.”

I am not an attorney in Illinois but this is what I find the secretary of state is supposed to do:

Sec. 5. It shall be the duty of the Secretary of State: 1. To countersign and affix the seal of state to all commissions required by law to be issued by the Governor. 2. To make a register of all appointments by the Governor, specifying the person appointed, the office conferred, the date of the appointment, the date when bond or oath is taken and the date filed. If Senate confirmation is required, the date of the confirmation shall be included in the register. 15 ILCS 305/ Secretary of State Act.

Section 25-7 – the section immediately preceding the applicable one giving the governor the power to appoint a replacement US Senator also requires the Governor to “issue a writ of election within 5 days after the occurrence of that vacancy to the county clerks of the several counties in the district where the vacancy exists, appointing a day within 115 days to hold a special election to fill such vacancy.” [Update: If not clear, Sec 25-7 covers the House vacancy]

Is there a coherent legal argument to allow the secretary of state to pick and choose which gubernatorial actions he deigns to “certify”? I suspect such certifications are merely administrative functions and must give way to the clear intent of the Illinois constitution:

Anyway, back to Senator Reid and the issue of Stare Decisis (I didn’t forget). Should Secretary White not succeed in his blatant power grab and Mr. Burris show up in Washington as the new President’s Senatorial successor, the Majority Leader has promised a fight:

“Under these circumstances, anyone appointed by Gov. Blagojevich cannot be an effective representative of the people of Illinois and, as we have said, will not be seated by the Democratic Caucus."

Hell, it might even have been former constitutional law instructor Barack Obama

“Obama concurred with the senators, issuing a statement that read: "Roland Burris is a good man and a fine public servant, but the Senate Democrats made it clear weeks ago that they cannot accept an appointment made by a governor who is accused of selling this very Senate seat. I agree with their decision, and it is extremely disappointing that Governor Blagojevich has chosen to ignore it. I believe the best resolution would be for the Governor to resign his office and allow a lawful and appropriate process of succession to take place."

Now I am sympathetic as to why the Democrats want to avoid any taint of the Illinois governor but as far as I can tell, the appointment clearly meets all constitutional requirements…which leads us to whether the Senate can still refuse to seat Mr. Burris under Article I, Section 5.

Mr. Burris is at least 30 years old and a US and Illinois citizen so the only real objection is to who appointed him. Since he is inarguably legitimately appointed (by the executive authority and not, for instance, by the Mayor of Chicago), how do the legal beagles on the Hill differentiate his qualifications from those of , say, Caroline Kennedy. Anyone truly want to argue that her qualifications trump his? At least his appointment would have been at the hands of a twice-ELECTED governor. (And, for the record, I think she is qualified, too..in that she is over 30 and an appropriate citizen).

As it were, the Supreme Court – the ultimate source of Stare Decisis - has spoken on this matter: Chief Justice (and liberal hero) Earl Warren:

“For these reasons, we have concluded that Art. I, § 5, is, at most, a "textually demonstrable commitment" to Congress to judge only the qualifications expressly set forth in the Constitution.”

so

“Therefore, we hold that, since… was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.” Powell v. McCormack

Such reasoning seems fairly on-point to me and I would think it should also be so to some of the more prominent Democrats weighing in on the matter…unless, of course, they just want to “turn stare decisis precedent on its head.”

Side Notes I: I note the Powell case only because of its precedential value. Justice Stewart dissented in the case on the grounds that the issue was moot (the 90th Congress, from which Mr. Powell had been denied a seat, had since given way to the 91st Congress). While offering no opinion as to the overall merits of the decision, I will reiterate that I have no problem with discarding precedent when said precedent is poorly reasoned or just wrong.

Side Notes II: Although Maryland never ratified it, enough of the other states did complete ratification of the 17th Amendment (referred to above) in 1913 to finalize the shift to popular election of Senators.